Author Archive for
Marty Lederman

Seven Observations About the Oral Argument in Bond

by Marty Lederman

[Marty Lederman is an Associate Professor at Georgetown Law School and former Deputy Assistant Attorney General in the Department of Justice’s Office of Legal Counsel from 2009 to 2010, and an Attorney Advisor in OLC from 1994-2002. Lederman and  law professors David Golove and John Mikhail filed an amicus brief in Bond.]


Some preliminary reactions that occurred to me as I was listening to the argument in Bond v. United States this morning (transcript available here):


1.  A Limiting Construction of the Treaty?

The most significant thing about the argument, perhaps—at least in terms of forecasting what the Court might do—is that Justices Kennedy and Breyer both indicated interest in whether the treaty might be construed so as not to cover some category of malicious uses of toxic chemicals that the international community would not have any obvious interest in regulating.  Bond’s lawyer, Paul Clement, had suggested in his brief that the Court might construe the “peaceful purpose” exception in the treaty to exempt any non-“warlike” use of chemicals.  The Solicitor General has explained why that particular construction is untenable (see pages 13-16 of his brief); and Paul appeared to concede as much this morning when he agreed that if Ms. Bond had sent sarin gas through the ducts of her victim’s house, that would not be a “peaceful” purpose, even though it would be purely local, and presumably not “warlike.”

Justices Kennedy and Breyer, therefore, were searching for another way to narrowly construe the treaty.  Justice Kennedy mentioned the possibility of imposing some sort of “clear statement” rule of construction with respect to applications of the treaty that would implicate a nation’s constitutional structure.  Justice Breyer, for his part, appeared to be pondering whether the Court could construe the “use” prohibition differently depending on the nature of the toxic chemicals in question—a sort of “two-tiered” construction:  On the one hand (if I understood him correctly), the prohibition on use would be categorical as to those especially dangerous chemicals (including sarin) listed in one or more of the three “Schedules” in the Annex to the Convention.  But at the same time the Court might read the Convention as excluding from coverage certain relatively less dangerous (because more confined) uses of all other toxic chemicals not specifically listed—uses that could not possibly, in the Justices’s view, raise any international hackles if left unaddressed.  The hypothetical cases Justice Breyer had in mind were, e.g., using kerosene to burn down a barn; feeding a horse a poison potato; using a match to set fire to a haystack . . . and perhaps Bond’s own case itself.  (Justice Breyer took his examples from Commonwealth v. Peaslee, 177 Mass. 267 (1901), a decision that Oliver Wendell Holmes issued on New Year’s Day, 1901, as Chief Justice of the Massachusetts Supreme Judicial Court.  Justice Breyer called it a “great case on attempted murder.”  Perhaps it is—the question was when extensive preparation followed by abandonment constitutes an attempt.  Not surprisingly, Peaslee doesn’t have anything to do with Congress, the treaty power or chemical weapons—which might have been Justice Breyer’s point, i.e., that cases such as Bond’s are the stuff of textbook state criminal law.)

There are at least two obvious difficulties in going down this road:  For one, it’s not easy to construe the language of the treaty to carve out such localized uses of certain chemicals but not others—and even more difficult, perhaps, to define in the language of a judicial opinion the category of cases that are too local, or too self-contained, to be of the sort that the treaty-makers presumably were most concerned.  Secondly, as the Solicitor General explained, the international community presumably settled upon a categorical prohibition (the CWC Preamble declares that the State Parties are “[d]etermined for the sake of all mankind, to exclude completely the possibility of the use of chemical weapons”) not because each and every hypothetical covered case would raise serious international concerns, but instead because a prophylactic, comprehensive ban is conducive to ensuring that all of the cases of possible international concern are covered.  The objective, in a nutshell, is to prevent various nations from deciding for themselves which uses of toxic chemicals are, or are not, worthy of international condemnation:  If, for example, the United States were to define a category of cases that are, in the Court’s view, peripheral to the primary objectives of the treaty-makers, what would prevent another nation, such as Syria, from likewise construing the Convention to exclude a different category of toxic chemical use that are, in its view, not of legitimate or significant international concern?

On the other hand, it would not be the first time the Court has narrowly interpreted treaty language to avoid interference in matters falling within the traditional police power jurisdiction of the states.  See, e.g., Yamataya v. Fisher, 189 U.S. 86, 97 (1903); Compagnie Francaise de Navigation a Vapeur v. Louisiana Board of Health, 186 U.S. 380, 393-95 (1902); Edward S. Corwin, National Supremacy: Treaty Power vs. State Power at 304-06 (1913).  And so, if Justices Breyer, Kennedy and/or other Justices can find their way to a construction of the CWC that would not cover Bond’s use of the particular chemicals at issue, the Court would then be able to avoid the need to decide whether to impose limits on the scope of the treaty power or on Congress’s authority to enact legislation to ensure the Nation’s compliance with its international obligations—limits that could seriously compromise U.S. foreign policy interests and that therefore were decisively rejected at the Founding and have been rejected ever since.


2.  “As-Applied” Commerce Clause Affirmance?

In my post yesterday, I suggested that another way for the Court to avoid reaching any significant constitutional question would be to… (Continue Reading)

Syria Insta-Symposium: Marty Lederman Part II–Will the U.N. Charter Be Part of the Forthcoming Congressional Debate?

by Marty Lederman

[Marty Lederman is a Professor at Georgetown Law School and former Deputy Assistant Attorney General in the Department of Justice’s Office of Legal Counsel from 2009 to 2010, and an Attorney Advisor in OLC from 1994-2002. This is the second part of a two-part posting.]

In my previous post, I explained that the difficult and unresolved constitutional question has (thankfully) been avoided—at least for now—by virtue of President Obama’s decision to seek congressional authorization for his proposed use of force in Syria.

That decision does not, however, affect the question of whether such an operation would violate Article 2(4) of the U.N. Charter.  To be sure, if Congress approves the operation, the statute in question will supersede the constraints of the Charter for purposes of U.S. domestic law.  But the U.S. remains a party to the Charter for purposes of international law, and international law is indifferent as to whether the U.S. legislature has or has not approved a particular use of force.

I think the vast majority of commentators on OJ and elsewhere—see, e.g., Dapo Akande on EJIL:Talk! –are correct:  The use of force in Syria would violate Article 2(4) of the Charter.  On the merits, I don’t have a great deal to add to what others have said, for there’s not much of an argument on the other side.  (One of my colleagues has suggested to me that perhaps there is a “plain meaning” and purposive reading of Article 2(4) that might be available—namely, that since the Charter prohibits use of force “against the territorial integrity or political independence of any state,” any use of force that is motivated by an aim other than violating the territorial integrity or political independence of a state (such as preventing future uses of chemical weapons) does not violate Article 2.  (Jordan Paust has suggested likewise in comments to several posts here.)  My understanding, however, is that no nation, including the United States, has ever adopted this reading of Article 2(4), which would radically narrow the scope and effect of the prohibition.  I would not expect the U.S. to float such a reading with respect to Syria.)

What about the “humanitarian intervention” rationale advanced by the U.K.?  It almost certainly will not even be the subject of debate in this country.  The U.S. has long been resistant to that theory, not only because it is almost impossible to defend on its merits—even if such a norm of humanitarian intervention had developed as a matter of custom (and it hasn’t), the U.K. offers no basis at all for why such a custom would be a defense under the Charter, a binding treaty—but also for fear that it would be exploited by other nations in a manner that we could not endorse and that would significantly undermine the Charter.  So, for example, after the U.S. agreed to join the operation in Kosovo in 1999, the State Department Acting Legal Adviser, Michael Matheson, was at pains to publicly emphasize that the U.S. “had not accepted the doctrine of humanitarian intervention as an independent legal basis for military action that was not justified by self-defense or the authorization of the Security Council.”

It is therefore not surprising…

Syria Insta-Symposium: Marty Lederman Part I–The Constitution, the Charter, and Their Intersection

by Marty Lederman

[Marty Lederman is a Professor at Georgetown Law School and former Deputy Assistant Attorney General in the Department of Justice’s Office of Legal Counsel from 2009 to 2010, and an Attorney Advisor in OLC from 1994-2002]

Most of the participants in this Insta-Symposium, and in earlier OJ posts, have understandably focused their attention on the question of whether a U.S. military strike on Syria would violate the U.N. Charter.  I’ll address that question in a subsequent post, in the context of some remarks on the forthcoming congressional debate.  But before I do so, Peter Spiro’s recent post about U.S. constitutional law deserves a response, for he has raised an important and serious charge.

According to Peter, President Obama’s decision to seek congressional authorization for the use of force is a “watershed”—indeed, a “surrender” of constitutional authority—because “[a]t no point in the last half century at least has a president requested advance congressional authorization for anything less than the full-scale use of force.”  Peter thus agrees with David Rothkopf’s accusation that “Obama has reversed decades of precedent regarding the nature of presidential war powers.”

I don’t think that’s a fair characterization.  Or, to be more specific, although Peter is correct that the President’s turn to Congress is in one respect without recent precedent, a unilateral use of force by the President in Syria also would have been unprecedented in important respects, and probably more corrosive to the modern balance of war powers between the political branches.  To understand why this is so, some background is in order.  What follows is a very simplified account of a very complex dynamic:

In the past two generations, there have been three principal schools of thought on the question of the President’s power to initiate the use of force unilaterally, i.e., without congressional authorization:

a.  The traditional view, perhaps best articulated in Chapter One of John Hart Ely’s War and Responsibility, is that except in a small category of cases where the President does not have time to wait for Congress before acting to interdict an attack on the United States, the President must always obtain ex ante congressional authorization, for any use of military force abroad.  That view has numerous adherents, and a rich historical pedigree.  But whatever its merits, it has not carried the day for many decades in terms of U.S. practice.

b.  At the other extreme is the view articulated at pages 7-9 of the October 2003 OLC opinion on war in Iraq, signed by Jay Bybee (which was based upon earlier memos written by his Deputy, John Yoo).  The Bybee/Yoo position is that there are virtually no limits whatsoever:  The President can take the Nation into full-fledged, extended war without congressional approval, as President Truman did in Korea, as long as he does so in order to advance the “national security interests of the United States.”  With the possible exception of Korea itself, this theory has never reflected U.S. practice.  (Indeed, even before that OLC opinion was issued, President Bush sought and obtained congressional authorization for the war in Iraq.)  Notably, it was even rejected by William Rehnquist when he was head of OLC in 1970 (see the opinion beginning at page 321 here).

c.  Between these two categorical views is what I like to call the Clinton/Obama “third way”—a theory that has in effect governed, or at least described, U.S. practice for the past several decades…

Kiobel Insta-Symposium: What Remains of the ATS?

by Marty Lederman

At first glance, the Court’s decision in Kiobel appears to portend a significant restriction on Alien Tort Statute jurisdiction—even for suits that allege torture, genocide, or another of what the Court in Sosa called the “modest number of international law violations” cognizable under the ATS, those with “definite content and acceptance among civilized nations” equal to that of the “historical paradigms” (such as piracy and violation of safe conducts) familiar in 1789.

And perhaps that will, indeed, be Kiobel’s legacy.  But perhaps not.  What’s most striking about the collected opinions is that the Justices themselves apparently do not think the decision will necessarily cut off ATS claims in such a comprehensive manner.  Justice Kennedy writes that the decision “leave[s] open a number of significant questions regarding the reach and interpretation of the Alien Tort Statute”; and even Justices Alito and Thomas acknowledge, with evident regret, that the Court’s opinion “obviously leaves much unanswered” (emphasis added).

What is the “much” that the Court does not answer?  The “number” of “significant” questions that remain unresolved?  If only it were as “obvious[]” as Justice Alito suggests.

To begin with, what legal propositions is it fair to say the Kiobel decision does establish?  Well, it is now settled that where the alleged conduct in question occurred wholly abroad, the mere fact that a corporate defendant has an office in the United States and shares that are traded on a U.S. exchange is insufficient to establish ATS jurisdiction, unless and until Congress amends the statute.  (All nine Justices agree that this is the case where only aiding and abetting is alleged; and I think it’s safe to say that a majority would rule the same way even where the defendant corporation is alleged to be the principal tortfeasor.)

By contrast, all nine Justices agree that there is ATS jurisdiction when, in Justice Alito’s words, “the domestic conduct is sufficient to violate an international law norm that satisfies Sosa’s requirements of definiteness and acceptance among civilized nations.”

But what about cases falling somewhere in between these polar ends?

Tom Lee describes some hypothetical cases that might not be covered by the Kiobel holding, such as where the conduct occurred in a “failed state”; but I doubt such rare hypotheticals are what the Justices had foremost in mind.  (It’s hard to imagine these are the “significant” questions that the decision “obviously” does not answer.)

I can think of at least three more familiar types of cases that the Justices might have had in mind as those that remain “unresolved” by Kiobel:

(i) Cases alleging Sosa-sufficient torts committed overseas by U.S. defendants;

(ii) Cases such as Filartiga, where a foreign defendant uses the U.S. as an effective “safe harbor,” thereby preventing other states from bringing him to justice;


(iii) Cases in which the defendant is alleged to have engaged in conduct in the United States that contributed materially to the violation of a Sosa-sufficient law of nations norm (such as providing active assistance to torture), but where that conduct in the U.S. was not itself sufficient to establish the violation.  (I am not including in this category cases alleging aiding and abetting predicated solely on knowledge by a U.S. corporation of a foreign subsidiary’s bad acts.  Although even that case is not technically resolved by Kiobel, I think it’s safe to predict the Court would not recognize such a claim, most likely on the theory that such general knowledge, and failure to stop the tort, does not satisfy the scienter requirement for a Sosa-qualified claim.)

We can say with some confidence that at least four current Justices (Breyer, Ginsburg, Sotomayor and Kagan) would recognize ATS jurisdiction in many or all cases in these three categories . . . and that, by contrast, two Justices (Alito and Thomas) would not.  What we do not know is whether and in what circumstances one or more of the other three Justices — or future Justices — would recognize ATS jurisdiction in such cases.

The question going forward, then, is whether such claims can satisfy the standard the Chief Justice articulates in the key, final paragraph of the Court’s opinion:  Do they “touch and concern the territory of the United States . . . with sufficient force to displace the presumption against extraterritorial application”?


John Brennan Speech on “Strikes Targeted at Individual Members of Al-Qa’ida”

by Marty Lederman

Brennan’s speech, given today at the Wilson International Center, can be found here.  I don’t have time to blog about it now; but in any event, it is more detailed than the previous Administration statements on the same subject and I think it largely speaks for itself.  Substantive comments welcome.

Question on 2007 Strike Against Syria and Anticipatory Self-Defense

by Marty Lederman

[Marty Lederman is a Professor at Georgetown Law School and former Deputy Assistant Attorney General in the Department of Justice’s Office of Legal Counsel from 2009 to 2010, and an Attorney Advisor in OLC from 1994-2002]

There was, of course, a great deal of international opinion offered concering the legality of the Israeli strike on the Osirak reactor in 1981.  But as two recent articles stress — see this piece by Georgetown student Leah Schloss and this piece by Australian professor Andrew Garwood-Gowers [which can also be found here if that link doesn’t work] — there has been virtual silence from the international community about the 2007 strike on the  Syrian nuclear facility at al-Kibar.

Is that account accurate?  I assume that because Israel has never acknowledged its purported involvement, it has also never offered an international law defense of the operation.  (True?)  Is it also the case that virtually no other nations have said anything one way or the other about its legality?

If so, what, if anything, does the 2007 operation portend for the development of the law of self-defense?  I’d welcome reactions to the Schloss and Garwood-Gowers articles and the question more generally, particularly from those who do not assume that all anticipatory strikes violate the Charter.

[UPDATE:  I’d also welcome comments on a broader question epitomized by this example–one that it appears will be increasingly relevant as time goes on:  What role, if any, can covert actions play in the creation or evolution of custom if no nation acknowledges the action in question and therefore there is no agreed upon version of the relevant facts and arguable legal justifications?  Does the answer to this question depend upon the nature, if any, of objections to the action?  What if there comes to be a generally accepted view of what “really happened,” based on leaks and the like, but still no official account or acknowledgement, let alone adjudication?]

Thanks in advance.

The NDAA: The Good, the Bad, and the Laws of War–Part II

by Marty Lederman

By Marty Lederman and Steve Vladeck*

Section 1021 of the NDAA and the Laws of War

In our companion post, we explained that section 1021 of the NDAA will not have the dramatic effects that many critics have predicted–in particular, that it will not affect the unresolved question of whether the 2001 Authorization for Use of Military Force (AUMF) would authorize a future President to place a U.S citizen or resident who is apprehended in the United States in long-term military detention. (The issue is moot during President Obama’s tenure, since “it is the firm position of the Obama Administration that suspected terrorists arrested inside the United States will—in keeping with long-standing tradition—be processed through our Article III courts, as they should be,” and that “when it comes to U.S. citizens involved in terrorist-related activity, whether they are captured overseas or at home, we will prosecute them in our criminal justice system.”  As the President reiterated today, “my Administration will not authorize the indefinite military detention without trial of American citizens.  Indeed, I believe that doing so would break with our most important traditions and values as a Nation.”)

In this post, we will address David Cole’s concerns about the relationship between the AUMF detention authority and the laws of war. This has the potential to be a very important question—indeed, it’s the one important substantive issue that has engendered an interpretive dispute among the judges on the D.C. Circuit.  In short, and as we explain in more detail below, the Obama Administration has advanced the view that the AUMF detention authority should be construed as limited and informed by the laws of war—a reading that is supported by the rulings of most habeas judges.  But two judges on the court of appeals have insisted to the contrary that it would be “both inapposite and inadvisable” for courts to look to the laws of war when construing the Executive’s detention authority under the AUMF—a view that has engendered some confusion in recent habeas cases.

How does section 1021 of the NDAA affect this dispute?

The NDAA: The Good, the Bad, and the Laws of War–Part I

by Marty Lederman

By Marty Lederman and Steve Vladeck*

Editorial pages and blogs have been overrun in the past couple of weeks with analyses and speculation about the detainee provisions in the National Defense Authorization Act, which the President has just signed into law.  One of the major disputes concerns whether and how the NDAA might alter the status quo.  In this post, we’ll try to synthesize the competing views offered by David Cole and Raha Wala, who remain quite critical of the provisions because of the changes they possibly presage, with those of Bobby Chesney and Ben Wittes, who argue that the NDAA doesn’t do nearly as much as its critics claim to affect the Executive’s current authorities and practices.  As we explain, there’s considerable merit to both sets of arguments.  Perhaps the most important impact of the NDAA, however, may be with respect to a question that has received comparatively little attention–namely, the effect of the laws of war on the Executive’s military detention authority.  In a companion post, we take a closer look at that important question.

The Bad

David Cole is surely correct that Subtitle D (“Counterterrorism”) of the NDAA contains some very troubling provisions—especially sections 1026 and 1027, which continue the deeply unfortunate and counterproductive authorities in current law prohibiting the use of funds to build a facility in the U.S. to house GTMO detainees and to transfer any such detainees to the U.S. for any reason, including criminal trial; and section 1028, which continues the current statutory requirement that the Secretary of Defense must make onerous certifications regarding the receiving nation’s security measures before any GTMO detainee can be transferred to another country.  These provisions will continue to prevent the closure of the detention facility at Guantánamo, notwithstanding the President’s view, which we share, that “the prison at Guantánamo Bay undermines our national security, and our nation will be more secure the day when that prison is finally and responsibly closed.”

Moreover, and as David further notes, section 1022 purports to establish a presumption in favor of indefinite military detention, rather than criminal arrest and prosecution, for some future foreign al-Qaeda suspects.  In the President’s words, it is in this respect “ill-conceived and will do nothing to improve the security of the United States,” and “is unnecessary and has the potential to create uncertainty.”  Fortunately, amendments adopted late in the legislative process—particularly a change to the section 1022 waiver provision and the addition of a new provision that “[n]othing in [section 1022] shall be construed to affect the existing criminal enforcement and national security authorities of the Federal Bureau of Investigation or any other domestic law enforcement agency with regard to a covered person”—will, we think, ensure that section 1022 is mostly hortatory, and will in practice allow the President to adhere to his commitments that “suspected terrorists arrested inside the United States will—in keeping with long-standing tradition—be processed through our Article III courts, as they should be”; that “our military does not patrol our streets or enforce our laws—nor should it”; and that “when it comes to U.S. citizens involved in terrorist-related activity, whether they are captured overseas or at home, we will prosecute them in our criminal justice system.”  As the President wrote today, he will construe section 1022 to afford “the full and unencumbered ability to waive any military custody requirement, including the option of waiving appropriate categories of cases when doing so is in the national security interests of the United States.”  (We would also note that, under a plain-language reading, section 1022 would not even cover persons apprehended in the U.S. by the FBI or other law-enforcement officials:  That provision applies only to a person “who is captured in the course of hostilities authorized by the AUMF”—and in the case of a domestic FBI or other law-enforcement arrest, presumably neither the arresting entity nor the individual would be engaged in “hostilities authorized by the AUMF.”  On this reading—which which is fortified by the language clarifying that 1022 does not affect FBI authorities—the statute could only apply in the first instance to someone captured by a U.S. agency acting pursuant to the AUMF, which in effect would mean apprehensions by the armed forces overseas.)

Even so, enactment of section 1022, ambiguous and potentially toothless though it may be, is not without costs.  It might well convey to the world that the American legislature views military detention as an unremarkable, even preferred, option in some terrorism cases, thereby blurring the important message the President has been endeavoring to convey, through word and practice, that “[t]he strong preference of this Administration is to accomplish [incapacitation of persons who are threats to the American people] through prosecution.”  Moreover, as Raha Wala points out, the very existence of section 1022 might give a future Administration a slight measure of political cover if it decides to reverse President Obama’s policy and begin to detain in military custody persons such as another Abdulmutallab, who are captured in the United States.  All in all, then, section 1022 is an unwelcome provision, even if it will (as we hope) have little or no practical impact on executive practice.

The Good

It is also worth emphasizing, however, that the Obama Administration, civil liberties and human rights organizations, and some members of Congress worked tirelessly and quite effectively to improve the final bill dramatically from the versions the Senate and (especially) the House had earlier passed. Because of those efforts, Subtitle D of the NDAA is not nearly as problematic as many critics have suggested.  Indeed, the final bill actually contains a handful of provisions that improve upon current law, and one—which will be our focus here—that helps to resolve an important interpretive debate about whether the Executive’s detention authority under the 2001 Authorization for Use of Military Force (AUMF) should be informed and limited by the laws of war.

The New York Times editorial on the NDAA is, unfortunately, representative of many of the false alarms being sounded about the legislation.  The Times complains that the NDAA “ban[s] . . . spending any money for civilian trials for any accused terrorist,” “strip[s] the F.B.I., federal prosecutors and federal courts of all or most of their power to arrest and prosecute terrorists,” and “give[s] future presidents the authority to throw American citizens into prison for life without charges or a trial.”

If this were an accurate description of the final legislation, it would be even more extreme than the House-passed version, which the President’s senior advisers recommended that he veto.  But the bill the President just signed does none of these things.

President’s Signing Statement on National Defense Authorization Act

by Marty Lederman

The President signed the NDAA today, and issued the following signing statement.  Steve Vladeck and I will shortly post on the details of the bill — what’s bad about it; how it has been widely misconstrued to be much worse than it is, in fact; and how in at least one important respect it marks an important resolution of an outstanding question involving the interplay of the AUMF detention authority and the laws of war.

Statement by the President on H.R. 1540

Today I have signed into law H.R. 1540, the “National Defense Authorization Act for Fiscal Year 2012.” I have signed the Act chiefly because it authorizes funding for the defense of the United States and its interests abroad, crucial services for service members and their families, and vital national security programs that must be renewed. In hundreds of separate sections totaling over 500 pages, the Act also contains critical Administration initiatives to control the spiraling health care costs of the Department of Defense (DoD), to develop counterterrorism initiatives abroad, to build the security capacity of key partners, to modernize the force, and to boost the efficiency and effectiveness of military operations worldwide.

The fact that I support this bill as a whole does not mean I agree with everything in it. In particular, I have signed this bill despite having serious reservations with certain provisions that regulate the detention, interrogation, and prosecution of suspected terrorists. Over the last several years, my Administration has developed an effective, sustainable framework for the detention, interrogation and trial of suspected terrorists that allows us to maximize both our ability to collect intelligence and to incapacitate dangerous individuals in rapidly developing situations, and the results we have achieved are undeniable. Our success against al-Qa’ida and its affiliates and adherents has derived in significant measure from providing our counterterrorism professionals with the clarity and flexibility they need to adapt to changing circumstances and to utilize whichever authorities best protect the American people, and our accomplishments have respected the values that make our country an example for the world.

Against that record of success, some in Congress continue to insist upon restricting the options available to our counterterrorism professionals and interfering with the very operations that have kept us safe…

Importance of the Brennan Speech (II)

by Marty Lederman

The first part of John Brennan’s speech, as I explain below, is an explication of the Administration’s understanding of the U.S. armed conflict with al-Qaida and its co-belligerents, the legal constraints governing our use of force, and the self-imposed parameters of the government’s use of force outside of “hot battlefields.”  That is to say, it is a description of the way in which the U.S. can and does use military force to counter one part of the terrorist threat–that presented by al-Qaida and other groups associated with al-Qaida with which we are engaged in armed conflict.

The remainder of the Brennan speech is largely devoted to arguing that it is not only unhelpful and inaccurate, but in fact counterproductive, to view the entirety of counterterrorism efforts through the lens of the use of military force, of “war.”  For this reason, the Administration is strongly opposed to several current efforts in Congress to require the use of military means in contexts that would be contrary to historical practice (including in the Bush Administration), where other means have been and continue to be much more appropriate and effective.  I can’t put this point much better than Juliette Kayyem recently made it, in a column that presages the details that John Brennan described last night:

[O]n the 10th anniversary of 9/11, there has been much talk of how the war on terror, at home and abroad, has kept us safe. . . .  This telling requires a sleight of hand and a lot of forgetfulness.  It equates the Obama administration’s use of the military through drone attacks and special operations as an extension of Bush’s “war.”  But narrowly targeted military strategies to combat specific threats are not the same as the global war on terror that we lived under during the Bush administration.

So, it’s time to set the record straight:  The war on terror is over.  To still call the effort to dismantle, kill, and disrupt Al Qaeda and its affiliates the war on terror is to treat the United States and its government as frozen in time.  It assumes that there has been no learning, no growth, no recognition of mistakes, no priority shifts, no advancement in capabilities. It assumes time has stood still.

It has simply not been more of the same. The CIA’s “black sites”–secret prisons in other countries–are closed.  Enhanced interrogation is outlawed.  The laws of war have been restored.  Guantanamo remains open not because Obama wants it that way, but because Congress has barred the expenditure of funds to bring its prisoners to the United States for trial.

Thus, to pretend that there has been no rejection of what came before–of what defined the “war”–is a mistake.  It took court decisions, public opposition, congressional changes, new leaders within the Bush administration, and finally a new president to end the war on terror as we knew it.

And the effort was worth it.  Because we got better.

Brennan’s speech is largely devoted to sounding similar themes.  “I am deeply concerned,” he said, “that the alternative approach to counterterrorism being advocated in some quarters would represent a drastic departure from our values and the body of laws and principles that have always made this country a force for positive change in the world.  Such a departure would not only risk rejection by our courts and the American public, it would undermine the international cooperation that has been critical to the national security gains we have made.  Doing so would not make us safer, and would do far more harm than good.  Simply put, it is not an approach we should pursue.”

With particular respect to the matters of detention and prosecution, these are the highlights, which are hardly in need of elaboration or explanation…

Importance of the Brennan Speech (I)

by Marty Lederman

In his speech last evening, Deputy National Security Advisor John Brennan clarified and strengthened a number of important points that the Obama Administration had previously articulated or suggested, and helpfully tied them together to provide a more comprehensive account of the President’s counterterrorism approach, particularly with respect to the U.S. commitment, emphasized by Brennan, on adherence to the rule of law and respect for international law norms.  In this post, I’ll focus on his remarks about the use of force.  In the next post, I’ll briefly discuss some of the more important aspects of the speech dealing with detention and prosecution.

It’s evident that a principal purpose of this section of the speech concerning the use of force, especially outside the “hot battlefield” of the Af/Pak theater, is to further distance the Administration from the “Global War on Terror” framework that infected U.S. characterizations of our counterterrorism strategy shortly after September 11th.  “[W]e are at war with al-Qa’ida,” emphasizes Brennan–not with all terrorists the world over.  (Brennan explains that our “ongoing armed conflict with al-Qa’ida stems from our right—recognized under international law—to self defense.  This is not news, or controversial.  See, e.g., U.N. Resolution 1373 (Sept. 28, 2001).  There is no such self-defense rationale available as a matter of the jus ad bellum with respect to all international terrorist groups.)

But what about Brennan’s references, early in his speech, to al-Qaida “adherents” and “affiliates”?  Although Brennan explains that “adherents” of al-Qaida–including “individuals . . . with little or no contact with the group itself”–have become a serious national security challenge because they can and do conduct attacks in the United States, the U.S. is not at war with each of them.  That is to say, the U.S. is not resorting to the use of military force against them.  Brennan also points to the danger of al-Qaida “affiliates”; but he does not suggest that the U.S. practice is to use military force against all al-Qaida “affiliates,” either.  As the Administration’s recent National Strategy for Counterterrorism explained, “‘Affiliates’ is not a legal term of art.  Although it includes Associated Forces [i.e., cobelligerents of al-Qaida and the Taliban engaged in the conflict against the U.S., against whom force may be used], it additionally includes groups and individuals against whom the United States is not authorized to use force based on the authorities granted by the Authorization for the Use of Military Force. . . .  The use of ‘Affiliates’ . . . is intended to reflect a broader category of entities against whom the United States must bring various elements of national power, as appropriate and consistent with the law, to counter the threat they pose.”  In other words, military force is authorized against al-Qaida, the Taliban and their cobelligerents.  But the increasing threats from groups and individuals who are more loosely inspired by or affiliated with al-Qaida will appropriately be countered using other tools of counterterrorism strategies, apart from the use of force.

Brennan then moves on to a matter about which “there is some disagreement”–namely, “the geographic scope of the [armed] conflict”…

John Brennan Speech on Obama Administration Antiterrorism Policies and Practices

by Marty Lederman

John Brennan just finished delivering this speech at the Harvard Law School.  I believe it is the most comprehensive single statement of the Obama Administration’s policies and practices with respect to al Qaeda and other terrorist threats.  There’s a lot of material here that will be of interest to OJ readers.  I will use boldface to identify what seem to me to be the highlights of the speech:
September 16, 2011

Remarks of John O. Brennan – As Prepared for Delivery
Assistant to the President for Homeland Security and Counterterrorism
Program on Law and Security
Harvard Law School
Cambridge, Massachusetts
Friday, September 16, 2011

“Strengthening our Security by Adhering to our Values and Laws”

As Prepared for Delivery –

Good evening.  Thank you, Dan [Meltzer], for your very kind introduction and for your service to our nation, in both the judicial and executive branches.  At the White House, Dan helped us navigate some of the most complex legal issues related to our efforts to keep the American people safe.  I know that President Obama is grateful for his service.  And I am grateful for having had the opportunity to sit through his many law tutorials during national security meetings in the White House Situation Room.  I dare say that those tutorials were a tad less expensive than what some of you currently are paying for his pearls of wisdom.

It’s a pleasure to be here at Harvard Law School, and I want to acknowledge Dean Minow and members of the staff and faculty who are here tonight.

I especially want to thank Professor Gabriella Blum and Benjamin Wittes of the Brookings Institution for being the driving force behind your new Program on Law and Security.  The preservation of our national security and the laws that define us as the United States of America demand that we understand the intersection of the two—indeed, how they reinforce one another.  So I commend you for your efforts, we look forward to your contributions, and I very much appreciate the opportunity to be here for your inaugural event.

It’s wonderful to see a number of friends and colleagues who I’ve had the privilege to work with over many years—public servants who have devoted their lives to protecting our nation.  And let me say what a thrill it is to see so many students here this evening.  I just hope your choice to listen to me on a Friday night is not an indictment of your social lives.

Now, I am not a lawyer, despite Dan’s best efforts.  I am the President’s senior advisor on counterterrorism and homeland security.  And in this capacity—and during more than thirty years working in intelligence and on behalf of our nation’s security—I’ve developed a profound appreciation for the role that our values, especially the rule of law, play in keeping our country safe. It’s an appreciation of course, understood by President Obama, who, as you may know, once spent a little time here.  That’s what I want to talk about this evening—how we have strengthened, and continue to strengthen, our national security by adhering to our values and our laws.
Obviously, the death of Usama Bin Laden marked a strategic milestone in our effort to defeat al-Qa’ida.  Unfortunately, Bin Laden’s death, and the death and capture of many other al-Qa’ida leaders and operatives, does not mark the end of that terrorist organization or its efforts to attack the United States and other countries.  Indeed, al-Qa’ida, its affiliates and its adherents remain the preeminent security threat to our nation.

The core of al-Qa’ida—its leadership based in Pakistan—though severely crippled, still retains the intent and capability to attack the United States and our allies. Al-Qa’ida’s affiliates—in places like Pakistan, Yemen, and countries throughout Africa—carry out its murderous agenda. And al-Qa’ida adherents – individuals, sometimes with little or no contact with the group itself – have succumbed to its hateful ideology and work to facilitate or conduct attacks here in the United States, as we saw in the tragedy at Fort Hood.

Guiding principles

In the face of this ongoing and evolving threat, the Obama Administration has worked to establish a counterterrorism framework that has been effective in enhancing the security of our nation.  This framework is guided by several core principles…